Foie gras as speech? even so, it can still be challenged under UCL

Animal Legal Defense Fund v. LT Napa Partners LLC, 2015 WL 1004423, No. A139625 (Cal. Ct. App. Mar. 5, 2015
ALDF sued LT Napa alleging that defendants sold foie gras in their Napa restaurant in violation of California’s law banning such sale; the trial court denied an anti-SLAPP motion and the court of appeals affirmed. In early January, a federal district court found the foie gras sale ban preempted, but the appeals court found that this didn’t moot the case at bar.
Defendant Frank, the head chef at Napa restaurant La Toque (owned by defendant LT Napa), was a vocal opponent of the ban.  After the ban went into effect, ALDF paid an investigator to dine at La Toque three times: September 2012, October 2012, and March 2013:
On each occasion he requested foie gras and was told that if he ordered an expensive tasting menu he would receive foie gras. On two of the occasions it was described as a “gift” from the chef. He ordered the tasting menus and was served foie gras. He was not told he was served foie gras in protest against the foie gras ban and was not provided information about defendant Frank’s opposition to the foie gras ban.
(Defendants argued that they now presented a protest card when offering a “gift” of foie gras, and that they did so randomly rather than systematically, but those were contested facts on which the court refused to rely.)
ALDF tried to get Napa authorities to act, but the city attorney declined, so ALDF sued under the UCL. For purposes of appeal, the court assumed that the lawsuit arose out of defendants’ conduct in furtherance of speech. Nonetheless, ALDF showed a probability of prevailing, justifying rejection of the anti-SLAPP motion. First, ALDF showed a probability of prevailing on standing.  The UCL requires plaintiffs to have lost money or property as the result of the defendant’s unfair business practices.  The evidence that ALDF “has diverted significant organizational resources to combat [defendants’] continuing illegal sales of foie gras,” undertaking various activities that would not have been necessary without defendants’ acts. Kwikset, in which the California Supreme Court interpreted the UCL, cited a case with favor in which a housing advocacy organization met its UCL standing requirement by “present[ing] evidence of actual injury based on the loss of financial resources in investigating [a] claim and diversion of staff time from other cases to investigate the allegations here.”  Cases applying the federal standing requirement, which was broader than the UCL standard but still relevant, also supported finding standing here with an organizational plaintiff. 
A cost incurred simply to initiate litigation is insufficient, but “funds expended independently of the litigation to investigate or combat the defendant’s misconduct may establish an injury in fact.”  Here, ALDF presented evidence of a genuine and longstanding interest in the effective enforcement of the statute and in exposing those who violate it. “Plaintiff’s evidence provides a basis to conclude that defendants’ alleged violations of the statute tended to frustrate plaintiff’s advocacy for an effective ban on the sale of foie gras in California, and tended to impede plaintiff’s ability to shift its focus on advocacy efforts in, for example, other states and at the federal level.” This evidence also showed that the defendants’ acts “caused” ALDF’s harms for purposes of rejecting the anti-SLAPP motion.
ALDF likewise showed a probability of prevailing on its claim that defendants unlawfully “sold” foie gras. Defendant Frank’s declaration indicated his personal responsibility for the restaurant’s acts: “In the exercise of my constitutionally protected right of petition and free speech, my restaurant, La Toque, is protesting the law, not breaking it, by giving away foie gras to customers I choose to give it to. … [W]hat I do give away to customers is my way of dumping tea in the harbor, so to speak.”
Moreover, the court was unpersuaded by defendants’ argument that there was no “sale” here. Ennabe v. Manosa, 58 Cal.4th 697 (2014), found that a law imposing liability on a person “who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor” applied where the defendant supplied alcohol to a minor at a party, and the minor was charged a fee to enter the party.  Ennabe favorably cited a California AG opinion interpreting liquor licensing laws with respect to commercial enterprises that offer “complimentary” alcoholic beverages to paying customers who purchase another good or service to be a “sale,” even though there was no additional charge to customers who elected to consume alcohol.  To hold otherwise would undermine the legislature’s regulatory intent, and the same was true here.
“Plaintiff’s investigator’s decision to order and agreement to pay the specified price for the tasting menu was the consideration offered for the entirety of the food served, including the foie gras.”  Defendants argued that they didn’t give foie gras to everyone who bought the tasting menu at that price, but that fact was irrelevant. “[R]egardless of whether other patrons paid the same amount without receiving foie gras, the investigator’s averments show the receipt of foie gras was part of the tasting menu offered to him prior to his decision to order it. Thus, the foie gras was part of the property he was offered for the price he agreed to pay.” This was a sale.  The “gift” characterization of the server didn’t matter because the investigator could only get the “gift” by buying the tasting menu.
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